Friday, January 21, 2011

Three Myths: Election Fraud, Big Foot, and the Loch Ness Monster.

Yet again voter photo ID is rearing its head in Minnesota, and still there is no good reason to have it. On January 13, HF0089 was introduced by a host of Republican authors in the Minnesota House of Representatives. The bill would require the presentation of a voter picture identification before receiving a ballot. The bill is popular with the GOP and with voters in general, but it is probably destined for a Dayton veto if sent to his desk.

Voter ID is one of the stupid public policies that I often rail about. Its apparent need is grounded in political myth. The myth is that there are significant numbers of illegal voters or voters–including felons, immigrants, and other undesireables–who are affecting the outcome of elections. Were they prevented from voting, and only real Americans could vote, then perhaps Democrats would not win close races, Franken and Dayton would not be in office, and Coleman and Emmer would be senator and governor. Thus, the reason why Franken and Dayton won in close races is simple–voter fraud or election official incompetence.

I am not going to devote an entire article to yet again discussing the myth of voter fraud. I have done previous blogs on it and have written a couple of articles questioning evidence for its existence. But a few simply points are appropriate. Let me do that I terms of a Q & A.

Q: Voter ID at the polls is needed to prevent fraud.A: No one will argue that there is no fraud in the election process. No system is 100% perfect. Mistakes are made but mistakes are not the same thing as fraud. In general, the studies on voter fraud indicate that it is minuscule and that there is no evidence that it is widespread enough to have altered the outcome of an election in Minnesota or perhaps anywhere else. When one actually examines the incidence of alleged fraud–felons voting when they should not–the total potential fraud is often .00000N of all votes cast. The reality is that the amount of alleged fraud is far less than the winning margins by Franken and Coleman.

Q: But has not the Minnesota Majority done studies to show fraud exists?A: Sure they have done studies but they are not worth the paper they are printed on. Methodologically they are sloppy and they make all kinds of claims about double voting, etc. However once investigated by country attorneys and others the numbers and their claims evaporate. I remember a few instances where they claimed a person at one address had double voted. It turned out that a father and son with the same name lived at the same address. It is this type of sloppiness that they engage in when the do their studies.

Q: Ok but voter fraud is hard to detect. Just because only a few cases of fraud are revealed shows how hard it is to detect. Election fraud is like littering (according to Judge Posner) or speeding. More cars speed than receive tickets. Actual tickets issued are only a small fraction of total fraud.A: the analogy to vehicular speeding is inapt. Speeding in a car is a continuous 24/7 activity that can occur anytime and anywhere. (The same is true about littering) There is no single detection point or place where people can speed and therefore with the almost infinite amount of cars driving along almost infinite roads, it is virtually impossible to detect all instances of speeding. Thus, the few speed traps that are set up obviously only detect and capture a small spectrum of all speeding.

However, voting or voter fraud is a discrete activity. It can only occur at a specific point in time or place and in order to commit fraud one has to commit it by going through specific point–a voting booth. Thus, all instances of fraud must go through and exit a single detection point. To be successful, in person fraud requires either a false registration, false signature, and tricking an election judge. The point is that to commit voter fraud one has to get past multiple detection points or check points. One can speed without every crossing a detection point (speed trap).

The point here is that the analogy of voter fraud to speeding or littering is inapt. One can speed or litter almost anytime or anyplace. This is what detection hard. The few instances detected and prosecuted are perhaps only a small sample of a larger pattern of speeding and littering that may exist. In addition, beyond detection and prosecution, other evidence, such as police using radar guns to detect speeders but not issue a ticket, or anecdotal statements from drivers that they speed, may corroborate inferences that it is more prevalent than prosecution may suggest. With littering, proof can be found along roadsides and fields across America–the fact that there are cans, papers, and other refuse there points either to the contests of garbage cans being knocked over or intentional littering.

One can only vote in person in a finite number of places and within a finite time. To vote, especially in person, there are several steps and checkpoints in place. There is in 42 states voter registration before election day. This is one check. For all 50 states, in-person voting requires someone to show up, give a name to an election judge and generally sign a log with which there is a signature match. There may be other requirements too. What this means is that one has to go to a specific place to commit fraud and cross past numerous detection or check points before one can actually submit a fraudulent ballot. One does not simply have to speed past a law enforcement officer to violate a motor vehicle law.

Thus, the analogy to speeding or littering is inapt. Lacking more proof that fraud exists, we cannot infer that it is more widespread than it is. Instead, we might be able to easily infer and argue that the few cases that occur demonstrate how well our election system works and how we are able to detect and root it out.

Q: But if we had photo ID we could prevent fraud?A: If little fraud already exists, then how can we deter what does not exist? Moreover, there is a powerful circular logic to supporters of photo ID. They argue that the ID is need to detect fraud. But in jurisdictions where the ID has been adopted no increase or report of fraud has been documented. Supporters then make a second claim–photo ID deters fraud. You cannot simultaneously argue that the use of an ID will make detection easier and at the same time claim it will deter fraud. Such a pair of arguments are empirically untestable. Thus supporters must rely on faith and not evidence to support their views.

Q: But what is the big deal about the ID? One needs an ID for just about anything in society, including cashing a check or renting a car.A: Cashing checks and renting cars are not constitutionally protected rights. Voting is a constitutionally protected right. It needs to be examined not in terms of what is a normal societal or commercial practice but in terms of a constitutional right. Society may require a merchant to go door-to-door to sell products but the First Amendment correctly states that groups such as the Mormons and the Jehovah Witnesses do not need a permit to go door-to-door to proselytize.

Q: Photo ID is supported by large majorities of the population. That is reason enough to enact it–majority rule.A: Yes, we do live in a country based on majority rule, but our Constitution and Bill of Rights say that it is majority rule tempered by minority rights. There are many things that majorities may want to do. They may not like the religion of some sect, the speech of some critic, or the color of someone's skin. But these are not reasons to allow a majority to have its way.

Justice Jackson in West Virginia v. Barnette said it best: “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to . . . freedom of worship . . . and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”

Q: But voter ID is needed to restore faith in the election process. Belief in voter fraud is deterring voting.A: There is no evidence for this. Some statistical analysis has been done and found no evidence that a belief in voter fraud is depressing the public from voting.

Q: So if there is no real good reason for pushing voter ID, why does the GOP keep advocating it?A: It is a great wedge issue. It divides the electorate. In addition, it provides comfort and explanation to why they lose close elections, especially in Minnesota. It is also a cynical way to engage their political base and fund raise. The reality is that there is no real good reason for photo ID, but it sounds politically good and it offers a narrative that appeals to many.

I cover this issue at the Texas Legislature, where the governor declared it "emergency" priority Legislation. I just spoke to a senator who said the notion that millions of illegals are coming over the border to vote is ridiculous: "I wish I could get the legal Spanish-speaking residents to vote!" And a Democratic consultant told me, "If all these illegals are voting, then why aren't we winning?"

The fact remains as well that this is a regressive tax as well. ID's cost money, while that is not an issue for most people, for the unemployed, those living on welfare, those who can't afford to replace an ID this is essentially a tax to vote. Last I checked that was highly illegal

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About Me

Professor in the political science department at Hamline University where he teaches classes in American politics, public policy and administration, and ethics.
Schultz holds an appointment at the University of Minnesota law school and teaches election law, state constitutional law, and professional responsibility.
He has authored/edited 30 books, 12 legal treatises, and more than 100 articles on topics including civil service reform, election law, eminent domain, constitutional law, public policy, legal and political theory, and the media and politics.
In addition to 25+ years teaching, he has worked in government as a director of code enforcement and for a community action agency as an economic and housing planner.